Tribunal Grants Dispensation for Urgent Works to Prevent Water Damage

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AY/LDC/2023/0017 Applicant: [redacted] Borough of Lambeth Representatives :

[COMPANY]: [NAME]

Respondents : [redacted] Property : 1-85 [ADDRESS] [POSTCODE] Type of [NAME] : [NAME] for the dispensation of consultation requirements pursuant to S.20ZA of the Landlord and Tenant Act 1985

Tribunal Members : Judge Hugh Lumby Duncan Jagger MRICS Venue : Paper determination Date of Decision : 17th April 2023

DECISION

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Decisions of the Tribunal (1) The Tribunal grants the [NAME] for the dispensation of all or any of the consultation requirements provided for by section 20 of the Landlord and Tenant Act 1985 (Section 20ZA of the same Act). (2) The reasons for the Tribunal’s decision are set out below. The background to the [NAME]

1. The property is a five storey purpose built block constructed during the 1930s which contains 85 mixed tenure flats.

2. The Tribunal did not inspect the property as it considered the documentation and information before it in the set of documents prepared by the Applicant enabled the tribunal to proceed with this determination.

3. This has been a paper hearing which has been consented to by the parties. The documents that were referred to are prepared by the Applicant, plus the Tribunal’s [NAME], the contents of which we have recorded. Therefore, the Tribunal had before it a bundle of documents prepared by the Applicant, in accordance with previous [NAME].

4. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all the consultation requirements imposed on the landlord by section 20 of the 1985 Act, (see the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987), Schedule 4). The request for dispensation concerns urgent works for the installation of a temporary supply and thereafter the replacement of a mains lead water supply and associated works which runs beneath the block. This follows the ingress of water into lift shaft No LF0378 (serving flats 61-85), which rendered this lift inoperable to the upper floors.

5. The [NAME] is said to be urgent, as the works are necessary in order to prevent water damage to the property, a risk to health and safety and a loss of water supply to the block. The Applicant’s qualifying long term contractor ([APPELLANT].[APPELLANT]) undertook a survey of the incident and initially a temporary supply pipe was installed on 4th November 2022 at a cost of £14,130.21. The relaying of a new supply pipe was subsequently undertaken at an estimated cost of £139,437.54. These works were carried out under a qualifying long term agreement.

6. Section 20ZA relates to consultation requirements and provides as follows:

3 “(1) Where an [NAME] is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

(2) In section 20 and this section— “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a [NAME], for a term of more than twelve months. …. (4) In section 20 and this section “the consultation requirements” means requirements prescribed by regulations made by the Secretary of State. (5) Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the recognised tenants’ association representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the recognised tenants’ association to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the recognised tenants’ association in relation to proposed works or agreements and estimates, and (e) to give reasons in prescribed circumstances for carrying out works or entering into agreements.

7. The [NAME] on 23rd February 2023 required any of the [NAME] who opposed the [NAME] to make their objections known on the reply form produced with the [NAME]. By 23rd March 2023 the Tribunal has been made aware of an email from [NAME] [NAME] dated 28th October 2022 containing 9 questions in connection with the proposed schedule of works. On the 1st November 2022, a detailed reply to each of the queries was provided by the Applicant.

8. By [NAME] of the Tribunal dated 23rd February 2023 it was decided that the [NAME] be determined without a hearing or by way of a paper case. The issues 9. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether or not service charges will be reasonable or payable.

4 Findings 10. Having read the evidence and submissions from the Applicant and having considered all of the documents and grounds for [NAME] the [NAME] provided by the applicants, the Tribunal determines the dispensation issues as follows.

11. Section 20 of the Landlord and Tenant Act 1985 (as amended) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake [APPELLANT] works, where a [NAME] will be required to contribute over £250 towards those works, to consult the [NAME] in a specified form.

12. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by an [NAME] such as this one before the Tribunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

13. In the case of [COMPANY] v Benson [2013] UKSC 14, by a majority decision (3-2), the Supreme Court considered the dispensation provisions and set out guidelines as to how they should be applied.

14. The Supreme Court came to the following conclusions: a. The correct legal test on an [NAME] to the Tribunal for dispensation is: 

“Would the flat owners suffer any relevant prejudice, and if so, what relevant prejudice, as a result of the landlord’s failure to comply with the requirements?” b. The purpose of the consultation procedure is to ensure [NAME] are protected from paying for inappropriate works or paying more than would be appropriate. c. In considering applications for dispensation the Tribunal should focus on whether the [NAME] were prejudiced in either respect by the landlord’s failure to comply. d. The Tribunal has the power to grant dispensation on appropriate terms and can impose conditions. e. The factual burden of identifying some relevant prejudice is on the [NAME]. Once they have shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. f. The onus is on the [NAME] to establish:

5 i. what steps they would have taken had the breach not happened and ii. in what way their rights under (b) above have been prejudiced as a consequence.

16.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

17. The Tribunal is of the view that, taking into account that there was only one observation from the [NAME], it could not find prejudice to any of the [NAME] of the property by the granting of dispensation relating to the essential temporary installation and new supply pipework of the incoming water supply, as set out in the documentation in the bundle submitted in support of the [NAME].

18. The Tribunal was mindful of the fact that the works were undertaken by the Applicant supported by a detailed contractor’s report.

19. The Applicant believed that the works were vital in order to prevent a risk to health and safety to residents, possible contamination of water supply and restoration of the working lift to potential vulnerable residents. On the evidence before it, the Tribunal agrees with this conclusion and believes that it is reasonable to allow dispensation in relation to the subject matter of the [NAME]. The Applicant is required to ensure that the fabric of the building and its services are properly maintained to the satisfaction of the [NAME] in accordance with the terms of the lease. The repairs works to the leaking lead water pipe were therefore carried out as a matter of urgency, hence the decision of the Tribunal.

20. Rights of appeal made available to parties to this dispute are set out in an Annex to this decision.

21. The Applicant shall be responsible for formally serving a copy of the Tribunal’s decision on the [NAME] named on the schedule attached to the [NAME]. Furthermore, the Applicant shall place a copy of the Tribunal’s decision on dispensation together with an explanation of the [NAME]’ appeal rights on its website (if any) within 7 days of receipt and shall maintain it there for at least 3 months, with a sufficiently prominent link to both on its home page. It should also be posted in a prominent position in the communal areas. In this way, [NAME] who have not returned the reply form may view the Tribunal’s eventual decision on dispensation and their appeal rights.

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Name: Judge Hugh Lumby Date: 17th April 2023

ANNEX - RIGHTS OF APPEAL

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First- tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).